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Supreme Court exonerates doctor over alleged cancer diagnosis delay

Avant media

Sunday, 19 June 2022

Lady sitting in waiting room

A GP has been exonerated of negligence after a patient claimed the doctor failed to take steps which would have led to an earlier diagnosis, improving her prognosis.

Importantly, this decision reassures doctors who may face a similar situation, that the standard of care expected of them is what is reasonable based on the knowledge the doctor possessed at the time of each consultation.

The case also offers valuable lessons about patient follow-up, including using a ‘wait and see approach,’ provided patients are advised to return if their symptoms persist and the advice is recorded.

Patient reports leg pain

The patient, in her mid-fifties, first presented to Doctor A in October 2016 complaining of left leg pain.

He recorded that she had the pain for eight days and had rated her pain level as an eight out of ten. Relying on his notes, Doctor A said he must have formed the impression she was in moderate pain as he prescribed a non-steroidal anti-inflammatory drug (NSAID), typically prescribed for moderate pain relief. An examination of her leg revealed no swelling, tenderness or redness, nor did she have any back pain. Blood tests were ordered to rule out anaemia.

While Doctor A believed he advised the patient to return if her leg pain did not improve, she disputed this. The court noted the records did not contain any advice to return and concluded that if this was mentioned, it was a throw-away line at the end of the consultation, rather than advice about the appropriate treatment strategy, including using time as a diagnostic tool.

The next day, a receptionist informed the patient in-person that her blood test results were “all good.” Doctor A recorded the test results as “normal,” but did not call her or refer her for any further investigations.

The patient gave evidence that while the NSAID initially relieved her pain for two weeks, it then had little to no effect. She did not make a follow-up appointment.

In June 2017, the patient saw another GP, Doctor B, reporting a three-day history of left foot, leg and hip pain. She was referred for a lumbar spine CT.

Patient diagnosed with lymphoma

In July 2017, the patient consulted Doctor A again for worsening lower back and left leg pain, unexplained weight loss, lethargy and incontinence.

Dr A prescribed an NSAID, and concerned about possible arthritis, referred her for x-rays and an ultrasound of her left hip and knee. However, these investigations were not performed until August 2017.

The ultrasound was normal, and the x-ray showed possible abnormality of the left sacroiliac joint. The radiologist recommended further x-rays on the sacroiliac joints, and if these were unremarkable, a CT or MRI of the lumbosacral spine. Doctor A did not refer the patient for further x-rays.

A month later, the patient saw Doctor B, who reviewed the x-ray results and referred her to an orthopaedic specialist for an MRI of the lumbar spine. This revealed multiple bony metastases.

The patient was referred to an oncologist and biopsies confirmed she had terminal non-Hodgkin’s lymphoma.

Case turns on reasonable standard of care

In handing down the decision, the court focused on whether the precautions the doctor took at the time were less than would be expected of a reasonable GP.

The allegations centred on the doctor’s failure to take steps the patient claimed would have led to an earlier diagnosis of lymphoma, in turn improving her prognosis and life expectancy. This included failure to:

  • properly investigate her symptoms and complaints
  • follow up after the consultation
  • refer for investigations
  • refer to a specialist or other doctor.

The court accepted that an investigation of non-Hodgkin’s lymphoma as a differential diagnosis at the first consultation was not reasonable and many instances of leg pain subside without treatment.

Drawing on the expert evidence, the court found the patient had low-grade lymphoma at the first consultation, which was potentially curable. However, only a PET scan would have detected it at that stage. The court noted a PET scan at the first consultation would have been “unjustifiable” and a referral necessary, as GPs cannot order PET scans.

The court noted some deficiencies in Doctor A’s management. Specifically, he did not follow best practice as he did not advise the patient he was using time as a diagnostic tool, and that the patient should return if her pain persisted, even if the blood test results were normal. As time was being used as part of a stepped approach to diagnosis, the judge indicated it would have been prudent to record this advice, particularly for other doctors at the practice.

However, the judge said a “reasonable GP was entitled to assume that a patient … would come back of their own volition if the pain persisted at a level above that of a minor irritation, even if not proactively spelling it out for the patient.”

“Following that first consultation, I remain unpersuaded that a reasonable GP would not have first relied in some way on seeing whether the pain dissipated over time with pain relief to manage the symptom in the meantime, and the patient then re-presenting … if her pain had not resolved,” the judge said. “The position may have been different if … Doctor A had seen the patient on a previous occasion and knew the pain relief prescribed was still necessary or had been ineffective, but that is not this case.”

“I am not satisfied on the balance of probabilities that the approach of … Doctor A fell short of the relevant duty of care owed, or that if there was a breach, any delay was causative of the patient’s current terminal prognosis,” the judge said.

The decision

Ultimately, the court ruled in Doctor A’s favour and the patient was ordered to pay his costs.

If the doctor had been negligent and the patient established she would potentially have been cured of non-Hodgkin’s lymphoma as a result, the court said she would have been awarded $300, 000 in damages, plus compensation for domestic assistance and treatment expenses.

Key lessons

Unfortunately, the patient in this case had a sad clinical outcome. However, the court’s decision is reassuring for doctors as it recognises best practice around referrals for investigations, patient follow-up and documentation.

  • It is not necessary to refer patients for tests that are not indicated for the clinical presentation.
  • Providing analgesia and employing a ‘wait and see approach’ can be reasonable in the absence of red flags, providing patients are advised to return if their symptoms persist.
  • Your clinical notes should include a full description of the history and examination findings, along with any advice given to the patient.

Useful resources


The case discussed in this article is based on a real case. Certain information has been de-identified to preserve privacy and confidentiality.

IMPORTANT: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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